The Indian Constitution established the Election Commission as a permanent and independent organization

to oversee free and fair elections throughout the nation.

According to Article 324, the election commission shall have the authority to supervise, direct, and regulate
elections for the Indian Parliament, state legislatures, the President of India, and the Vice-President of India.
In Mohinder Singh Gill v. Chief Election Commissioner, the Supreme Court held that the ECI has broad
authority under Article 324, which allows it to take all necessary measures to ensure free and fair elections.
 The commission initially just had one election commissioner. However, it is now a multi-member
body as a result of the Election Commissioner Amendment Act of 1989.
 The commission is made up of two election commissioners and one chief election commissioner.
 Election commissioners and the chief election commissioner are appointed by the president.
 They have a fixed term of six years, or until they reach the age of 65, whichever comes earlier.
 They have the same status as a Supreme Court Judge, and they receive the same pay and benefits.
Removal of Election commissioners
Chief Election Commissioner: He cannot be removed from his office except in the same manner and on the
same grounds as a judge of the Supreme Court.
Election Commissioner: Any other election commissioner or a regional commissioner cannot be removed
from office except on the recommendation of the chief election commissioner.
Resignation: ECs including chief election commissioners can resign at any time or can also be removed
before the expiry of their term..
Procedure for Removal
 The CEC can only be removed from office by Parliament using a procedure similar to that of a
Supreme Court judge.
 The CEC may be removed from their posts by a resolution approved by Parliament on the grounds
of “Proven misbehavior or incapacity.”
 Removal needs a special majority of two-thirds of the members present and voting, as well as
approval from more than half of the house’s total membership.
 The term “impeachment” is not used in the Constitution to describe the removal of CEC.
Independence of ECI
The CEC cannot be dismissed from his position other than in the same way and for the same reasons as a
Supreme Court judge.
 After being appointed, the CEC’s service requirements cannot be changed to his detriment.
 A regional commissioner or another election commissioner cannot be dismissed from their position
unless the chief election commissioner recommends it.
Powers and Functions of the Election Commission
 The Indian Election Commission compiles and regularly updates electoral rolls, registers all
eligible voters, announces election dates and schedules, and examines nomination papers.
 The commission determines the geographic limits of electoral seats across the country based on the
Delimitation Commission Act of Parliament.
  The commission is responsible for the creation of an electronic photo identity card and the
preparation of an election list.
 All political parties must adhere to spending caps on each candidate’s campaign, which are carefully
monitored, and guide the post-election disqualification of sitting members of the state legislature and
the Parliament.
 It requests that the governor or president for the staff required to conduct elections. Additionally, it
enrolls political parties for electoral purposes and grants them national or state party status based
on the results of polls.
 It provides advice to the governor on issues of the disqualification of members of state legislatures as
well as the president on issues of the disqualification of members of Parliament.
 In the event of rigging, booth capturing, violence, or other irregularities, the commission selects
officers to conduct inquiries and into complaints relating to electoral arrangements and to call off
elections.
 Political parties are given recognition and are given election symbols by the commission.
 They establish the code of conduct that the parties and candidates will adhere to during the election.
 The Commission creates a schedule for political party policies for the advertisement on radio and
television during election times and oversees the election infrastructure across the nation to ensure
free and fair elections.
Issues with ECI
 The Election Commission lacks the necessary tools to control political parties. It is unable to impose
internal party democracy or control party finances.
 The rise in violence and money-driven electoral fraud, which ECI is helpless to stop, have resulted in
political criminality.
 The general public’s confidence in ECI is eroded by claims that EVMs are broken, vulnerable to
hacking, and incapable of recording votes.
 False affidavit or withholding of material information taken by a candidate in the affidavit are not
grounds for contesting the election or for the part of the RPA, 1951 that deals with the rejection of
nomination papers.
 Political parties can be registered with ECI, but they cannot be de-registered.
 The legal, academic, administrative, and judicial requirements for Election Commission members
have not been outlined in the Constitution.
 The Constitution does not prohibit the government from appointing the retiring election
commissioners again. Here independence is susceptible to being threatened.
 In the unlikely event that the individual in charge of the commission adheres to a certain ideology, he
or she may give strange instructions that destabilize politics or trigger a constitutional crisis.
QRecent Developments
The new law governing appointments to the constitutional body, the Chief Election Commissioner, and other
Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 has come into
implementation with the appointment of new ECs to fill up two vacancies in the three-member Election
Commission of India.
  In terms of the new law, the ECs will be selected by a three-member Selection Committee,
comprising the Prime Minister, the Union Home Minister, and the leader of the largest party in the
Opposition.
 They will be chosen out of a shortlisted panel of names.
 The shortlisting will be done by a committee which, according to the Act, is headed by the Union
Minister for Law and Justice and includes two officials of the rank of Secretary to the government.
Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023
 The act replaces the Election Commission (Conditions of Service of Election Commissioners and
Transaction of Business) Act, 1991.
 It provides for the appointment, salary, and removal of the Chief Election Commissioner (CEC) and
Election Commissioners (ECs).
 The CEC and ECs will be appointed by the President upon the recommendation of a Selection
Committee.
 The Selection Committee will consist of the Prime Minister, a Union Cabinet Minister, and Leader of
Opposition/leader of the largest opposition party in Lok Sabha.
 Recommendations of the Selection Committee will be valid even when there is a vacancy in this
Committee.
 A Search Committee headed by the Cabinet Secretary will propose a panel of names to the Selection
Committee.
 Eligibility for the posts includes holding (or having held) a post equivalent to the Secretary to the
central government.
 The salary and conditions of service of the CEC and ECs will be equivalent to that of the Cabinet
Secretary.
 Under the 1991 Act, it was equivalent to the salary of a Supreme Court Judge.

CASE LAWS:
1. ASSOCIATION FOR DEMOCRATIC REFORMS VS. UOI
Facts
The Association for Democratic Reforms filed a petition with the High Court of Delhi to compel
implementation of certain recommendations regarding how to make the electoral process in India more fair,
transparent and equitable. As requested by the Government of India, these recommendations had been
produced by the Law Commission and provided that the Election Commission should require all candidates
to disclose personal background information to the public, including criminal history, educational
qualifications, personal financial details and other information necessary for judging a candidate’s capacity
and capability.
Ruling that a candidate’s background should not be kept in the dark as it is not in the interest of democracy,
the High Court of Delhi ordered the Election Commission to obtain such information for the benefit of the
voters. The Union of India challenged the decision through an appeal to the Supreme Court of India, arguing
that the Election Commission and the High Court did not have such powers and that voters did not have a
right to such information.
Decision Overview
The Court issued two main rulings: (1) When the legislature is silent on a particular subject and an entity (in
this case, the Election Commission) has been granted implementation authority with respect to such subject,
the Court assumes that the entity has the power to issue directions or orders to fill such a void until a suitable
law on the subject is enacted; and (2) Citizens have a right to know about public functionaries, which is
derived from the concept of freedom of speech and expression and which includes the right to know about
the backgrounds of candidates for public office.
2. Facts of PUCL vs Union of India
PUCL, a voluntary organisation, filed a public interest petition challenging the constitutionality of
Section 5(2) of the Indian Telegraph Act, 1885. This section allowed the Central or State
Governments, during public emergencies or for public safety reasons, to intercept messages when
they believed it was necessary on grounds such as protecting India’s sovereignty, maintaining
friendly relations with other nations and preserving public order. The Petitioner contended that this
section violated individuals’ privacy rights, particularly in light of a report by the Central Bureau of
Investigations on the “Tapping of Politicians’ Phones.”
Issues Raised
 The issues raised in PUCL vs Union of India were:
 Whether Section 5(2) of the Indian Telegraph Act, 1885 was used to violate the right to
privacy.
 Whether there was a need to modify Section 5(2) of the Act to include specific procedures to
prevent unfairness and excessive phone tapping.
Judgement of PUCL vs Union of India
The Court in PUCL vs Union of India relied on previous judgments such as Kharak Singh vs. State
of U.P. & Ors. (AIR 1963 SC 1295), Gobind vs. State of MP & Anr. (AIR 1975 SC 1378) and R.
Rajgopal vs. State of TN (AIR 1995 SC 264). The court noted that while the Indian Constitution
didn’t explicitly mention a right to privacy, it was inherent in the right to “life” and “personal liberty”
under Article 21, which couldn’t be restricted except through established legal procedures. It
emphasised that determining whether this right had been violated required a case-by-case
assessment.
The Court recognised in PUCL vs Union of India that the right to have private telephone
conversations at home or work without interference could be considered a “right to privacy.” It stated
that phone tapping would infringe upon Article 21 unless it was permitted through a legally
established procedure. The Court also pointed out that telephone conversations were an exercise of a
citizen’s freedom of speech and expression under Article 19(1)(a). Therefore, intercepting these
conversations had to be a reasonable restriction under Article 19(2) of the Constitution.

3. Manoj Narula v. Union of India (2014):

The Delhi HC held that a person cannot be disqualified from contesting elections merely because
they have been charged with a criminal offense.
However, the court also held that political parties must not field candidates who have a criminal
background.

4. Public Interest Foundation v. Union of India:Case Synopsis

INTRODUCTION:
It is a landmark case in which the Hon'ble Supreme Court of India has issued guidelines and
directions to curtail the criminalization of politics in India. The petition was filed by BJP leader
Ashwini Upadhyay and the NGO Public Interest Foundation. The petition was filed to seek guidance
from the Apex Court of India about the criminalization of politics and limitations on the
criminalization of contesting elections.

FACTS:
There have been many writ petitions filed in this case, but the most important one is the one filed in
2011 to seek direction from the Apex Court of India regarding the criminalization of politics and
restrictions on the criminalization of contesting elections. In its landmark judgment of 25 September
2018, the Five-Judge Constitutional Bench of the Supreme Court held that candidates contesting the
election could not be disqualified simply because they were charged in a criminal case.

ISSUES:
Whether the court can lay down any disqualification for membership of Parliament beyond Article
102(a) to (d) and Parliament's legislation under Article 102(e)?

ARGUMENTS:
• The petitioners proposed that the court should order the Election Commission to prohibit
political parties from issuing tickets or accepting support from independent candidates with criminal
records. Referring to the 1968 Election Symbols (Reservation and Allocation) Order, it was also
claimed that the assigning of an election symbol to a recognised political party should be cancelled if
it is found to be in violation of the EC 's mandate.
• It was also argued that the person who breaks law should not be allowed to become
lawmakers, since the right to contest elections is not a fundamental right.
• The Respondents, on the other hand, argued that the principle of separation of powers is
being followed in India and that the Court did not have the power to make laws.
• This was also argued that Art. 142 of the Constitution of India (COI)does not grant the Court
the power to add terms to existing legislation.

JUDGEMENT:
The Five - Judge of the Constitution Bench ruled that candidates should not be excluded solely
because they were convicted in a criminal case. The bench also advised the legislature to consider
changing the legislation to facilitate the decriminalization of politics. The Court further held that
candidate must fill out the form as given by the Election Commission and the form must contain all
the information as needed. The form must state in bold letters, in recognition of the criminal
proceedings pending against the nominee. When a candidate seeks an election on the ticket of a
specific party, he / she is expected to notify the party of the criminal proceedings pending against
him / her. The political party concerned shall be obligated to make available on its website the details
referred to above concerning candidates with a criminal record. Both the candidate and the political
party concerned shall make a declaration in the widely circulated local newspapers about the
candidate's history and shall also make a large publicity in the electronic media.

Facts:
This contempt petition outlines the important issues related to criminalisation of politics and further
brings to our notice a disregard of the directions issued by the Constitutional Bench in the case of
Public Interest Foundation & ors. v. Union of India & anr. This case also known as Electoral
Disqualification Case. The instant petition was brought by a BJP leader Ashwini Upadhyay and an
NGO named ‘Public interest foundation’ in order to seek directions of the Supreme Court of India
involving the criminalisation of politics and prohibiting the criminals from contesting election and
getting elected as Member of Parliament.

Issues involved:
The main issue raised in the instant case is that whether the court by making new laws can disqualify
the membership of Parliament exceeding Article 102 (a) to Article 102 (e)?

Judgement:
The Supreme Court after taking into account the doctrine of Colorable Legislation, the principle of
Separation of Powers and scrutinizing the inability of the court to issue writ of Mandamus to the
Election Commissioner concerning the extension of law of disqualification for the reason of a
candidate having criminal background, the court came to the conclusion that the power of making
laws cannot be extended to the judiciary. But the court has power to issue directions or guidelines as
guaranteed under Article 129 and Article 142 of the Constitution.